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BOSTON COMMON. 



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BOSTON: 

JOHN H. EASTBURN, PRINTER. 

1843. 



tl3 



We have examined the records for the County of 
Suffolk, and are of opinion that the Lands now pro- 
posed to be sold by the City, lying North of the 
Depot of the Boston and Providence Rail Road 
Corporation, were originally part of the Boston 
Common. 

C. P. & B. R. CURTIS, 
N. I. BOWDITCH. 

Boston, November 6, 1843. 



CASE. 



The opinion of Counsel is requested on the fol- 
lowing case. Prior to 1794, the Lands in question 
were a part of the Common in the Town of Boston. 
They consisted in part of upland and in part of flats 
appurtenant thereto. In the year 1800, or there- 
about, Charles street was laid out through this Land, 
and at some subsequent period (the precise date is 
not known, but before the year 1820) that part of 
the Common East of Charles street, was enclosed 
by a fence, which ran along on the East side of 
Charles street. On the first day of September, in 
the year 1794, the inliabitants of Boston passed the 
votes of which the following is a copy. 

Voted to Isaac Davis and others, to hold to them 
and to their heirs and assignees forever, the first fifty 
feet of said piece of Land, fcc, upon the following 
conditions. 

(1) That neither the said grantees, nor their 
heirs or assignees, shall at any time hereafter erect or 
cause to be erected, any Ropewalk upon the Land 
where the late Ropewalks were consumed by fire, 
nor any part thereof. 

(2) That there never be any other buildings than 
Ropewalks erected upon the Lands hereby granted, 
nor more than six of them. 

(3) That the heads of the Ropewalks to be 
erected thereon, be placed at the Southerly end of 
the said granted Lands ; that they shall not be juore 



4 

than one story in height, nor the eaves more than 
seven feet from the floor, excepting forty feet from 
the head of each walk for a store, which may be two 
stories high, they to be built with brick and covered 
with slates. 

(4) That the grantees aforenamed, erect within 
the space of two years from the present time, at their 
own expense, a sufiicient sea-wall, in the opinion of 
the Selectmen for the time being, the whole length 
of the said granted Lands, on the Westerly side 
thereof, at a distance not exceeding thirty feet from 
the same, the right of property in which wall, if 
erected without the bounds of the grant, shall be in 
the Town. 

And nothing in the foregoing grants shall be con- 
sidered as conveying to the said grantees any right 
of passage in any direction across the Common, to 
or from the granted Lands. 

Voted, That the Selectmen, in the name and be- 
half of the said Town, be and hereby are authorized 
and requested to execute good and sufficient deeds 
to the aforesaid grantees of the lots granted to them 
IS aforesaid, upon the conditions and with the re- 
strictions and reservations herein before described, 
and that they insert in the deeds so to be executed, 
a covenant on the part of the Town, that they will 
not build any Ropewalk on the Common, nor ever 
hereafter grant any part thereof for the purposes of 
building such walk. 

It was also voted that the said grantees are author- 
ized and empowered to extend the limits of said Land 
hereby granted, fifty feet over the flats, they relin- 
quishing the same space on the Easterly side of the 
said Land, or to alter the said limits so as to extend 



across the said marsh in a diagonal direction, provi- 
ded they do not in either case come nearer than fifty 
feet to the end of the rail fence aforesaid, nor run 
Northerly so as to cross the said line to be run parallel 
with Beacon street, reserving however sixty feet in 
width across the Southerly end of said piece of 
Land, for a road from Pleasant street down to the 
channel. Boston Rec. Sept. 1, 1794, Fol. S, p. 434. 
On the 31st day of August, 1796, the Selectmen 
executed a deed, of which the following is an ab- 
stract, by which the Town of Boston conveyed to 
AVilliam McNeil and Archibald McNeil, two of the 
grantees aforenamed, part of the granted Lands, in 
pursuance of the above votes, and upon the same 
restrictions and conditions as were expressed in the 
deeds to all of the said grantees. By these deeds 
the Selectmen convey to the grantees aforesaid, a 
certain* tract of Land at the bottom of the Common 
upon certain terms and conditions therein mention- 
ed, but set forth more at large in the votes of the 
Town, of which the above is a copy. These Lands 
are conveyed to the said grantees, their heirs and as- 
signs, to their and their assigns only use, benefit, 
and behoof forever. Provided always, and these 
presents are on the conditions, &:c., following, that 
is to say, that the inhabitants reserve the liberty 
and privilege, at any time hereafter to carry sluice 
ways or drains through the said Land in any direc- 
tion towards the salt water and further tliat the 
grantees, their heirs and assigns shall not erect or 
cause to be erected any Ropewalk upon the Lands 
where their late Bopewalk stood, or upon any part 
thereof; that there never be any other building than 
one Ropewalk erected on the granted Land ; that the 
head of the Ropewalk to be erected thereon, be 



placed at the Southerly end of the said granted Lands ; 
that the same shall not be more than one story in 
height, nor the eaves more than seven feet from the 
floor, excepting forty feet from the head of each 
walk, for a store which may be two stories high if 
built with brick and covered with slates ; that the 
said grantees at their own expense, within two years 
from the said first of September, build a sufficient 
sea-wall, in the opinion of the Selectmen for the 
time being, the whole length of the said granted 
Lands, on the Westerly side thereof, agreeable to the 
true intent and meaning of the Town votes passed 
as aforesaid, as v/ill appear by reference thereto. 
Provided also, that nothing in these deeds shall be 
construed to convey any right to passage in any 
direction to or from the granted Lands across the 
Common. And the said inhabitants by their Select- 
men, do covenant and agree with the said gi'^ntees, 
their heirs and assigns, that they will not build or 
cause to be built any Ropewalk on the Common, 
nor make any grant of any part thereof for the pur- 
pose of building such walk, other than such as is 
granted in the votes referred to. 

Executed on the 31st day of August, 1796. 
This was the state of the title at the time when 
the City Charter was granted. The Land was then 
occupied by six Rope walks under these grants from 
the Town. After the City Charter was granted, the 
City purchased the titles of William Gray and others, 
the proprietors of the Ropewalks and the same were 
conveyed to the City. The question is, whether the 
Mayor, Aldermen and Common Council have the 
power under the City Charter, to sell and convey 
the Land in question. 



OPINION. 



The first point of inquiry in this case, in tlie view 
I have taken of it, is as to the right and title of tlie 
City of Boston to the Common. The case states 
that the Land, now proposed to be sold, was until 
the year 1794 a part of the Common. In that year 
the Town passed certain votes, by virtue of which 
the Land in question, or a part of it, was afterwards 
sold. The City succeeded to all the rights of the 
Town, and has since its incorporation repurchased 
this Land. It is necessary therefore, to ascertain 
what right the Town of Boston had in the Common, 
at the time of the sale in 1 794. 

It is matter of notoriety that from ancient time, 
commencing near the first settlement of the Town, 
the Common has always been kept as a public 
square or park, and freely used by the public for 
military trainings, and as a place of general resort 
for exercise, and the circulation of pure and whole- 
some air. During this long period, the Common 
has never been applied to any use, inconsistent with 
this public use. Such use and occupation by the 
public, from time immemorial is evidence of the 
dedication of the Land by the owners, whoever they 
were, to the public for the uses and purposes, to 
which it has been applied. 



8 

That Land may be so dedicated to the pubhc by 
parol, without any deed or written conveyance, is a 
well settled doctrine of the common law. On this 
principle rest the right of the public to many of the 
public squares and streets in Boston. The case is 
the same in most other cities and large towns 
throughout the country. 

The right of the public to the use of property, 
thus acquired by dedication, is no more revocable 
by the former owner, than it would be if secured by 
the most formal and solemn conveyance. A cor- 
poration is as competent to make the dedication as 
a private person. Whether the dedication in this 
case was made by Blackstone, who is said to have 
been anciently the owner of the whole peninsula of 
Boston, or by the Town, after it acquired a title, is 
of no importance. The use and occupation, for so 
long a period, is conclusive evidence of a valid ded- 
ication, and the making it by the Town gives no 
pretence of a right to annul or revoke it. The ded- 
ication was for the public at large, and it cannot be 
annulled or revoked, except by the assent of the Su- 
preme power of the State. The fee may still re- 
main in the City, subject to the public use, and the 
City may have the superintendence of the Land, and 
apply it to any purpose not inconsistent with the 
public use. There is no necessity for trustees for 
the protection of the public use. All encroachments 
by the erection of buildings, fences, or otherwise in- 
terfering with, or injurious to this use, are consider- 
ed and treated as nuisances, and may be removed by 
judicial proceedings, if instituted in due season. 
Our Revised Statutes, Chap. 24, Sect. 61, relating 
to public nuisances and their removal, by public 



prosecution, provides against nuisances on high- 
ways, training fields, burying places, landing places, 
or other land, appropriated for the general use or 
convenience of the inhabitants of the Common- 
wealth, or of any county, town, or parish. This laist 
clause would clearly include the Common, 

The validity of the dedication of property to pub- 
lic uses has been recognised by the Supreme Judi- 
cial Court of this State. 2 Pick. 44, Common- 
wealth vs. Tucker, 12 Pick. 405, Hobbs vs. Lowell. 
Indeed I do not know that the validity of the dedica- 
tion, to public uses, of property like that under con- 
sideration has ever been doubted. Doubts have 
been suggested against it, when applied to high- 
ways, but solely on the ground that highways, in this 
State, were supposed to be exclusively regulated by 
the provisions of our Statutes. But these doubts 
were, in the last mentioned case, examined and 
overruled. 

In several very important cases, in the Supreme 
Court of the United States, this subject has been large- 
ly and very ably discussed. And the validity of the 
dedication by parol of property, like that under consid- 
eration, to public uses, has been afhrmed by the unani- 
mous opinion of that Court. I refer to the cases of the 
City of Cincinnati vs. White, Barclay vs. Howell, in 
6th of Peters' Reports, and New Orleans vs. United 
States, in 10th of Peters. In the last case, the doc- 
trine is laid down in the most emphatic terms. It is 
understood that encroachments have heretofore been 
made on certain parts of the Common, under sales 
made by the Town, and the erection of buildings 
thereon. It is held by the Supreme Court of the 
United States, in the last named case, that such en- 



10 

croachments furni.sh no evidence, and raise no pre- 
sumption against the validity of the dedication. 

I am aware that a popular opinion has prevailed 
that the Town formerly had power to sell the whole 
Common, for any purpose whatever, and that the 
City Council, at the present time would have had 
the hke power, were it not for the restraint imposed 
on them by the Charter. But I am not aware that 
such opinion has ever been sanctioned by any judi- 
cial decision, or sustained by the opinion of any 
counsel on due consideration. 

Resting on the ancient principles of the common 
law, recognised by the Supreme Courts of the Unit- 
ed States and of this State, we may safely conclude 
that the Town in the year 1794, when it made the 
grants mentioned in the statement, had no lawful 
power to sell any part of the Common, to be applied 
to any purpose or use, inconsistent with the public 
use, to which it had been dedicated. 

The inquiry still remains, whether the City Coun- 
cil can rightfully sell the Lands in question, by vir- 
tue of the authority given them by the Charter. The 
City Charter provides that " the City Council shall 
have the care and superintendence of the public 
buildings, and the care, custody and management of 
all the property of the City, with power to lease or 
sell the same, except the Common and Faneuil 
Hall." The case states that the Lands in question, 
now proposed to be sold by the City Council, were 
originally, and until the year 1794, a part of the 
Common. In that year, which was before the 
granting of the Charter, the Town of Boston granted, 
in fee simple, to certain persons the Lands in ques- 
tion, subject to certain conditions, to wit, that no 



11 

buildings should be ever erected thereon, except 
Ropewalks of seven feet in height, from the floor to 
the eaves, with heads at the Southeast end, of two 
stories, for the space of forty feet, and certain 
other conditions, unimportant to the present inquiry. 
Ropewalks were erected, in conformity with the 
conditions of the grant. After the incorporation of 
the City, Avhich was done in 1821, the City purchas- 
ed from the proprietors of the Ropewalks, the Land 
so as aforesaid granted by the Town, and took a con- 
veyance thereof, and the Ropewalks were taken 
down. 

It is understood that tlie City Council contend, 
that by reason of this grant and repurchase, the 
Land in question does not come within the excep- 
tion in the Charter, because this Land before the 
granting of the Charter had been sold and conveyed 
away to private individuals, and was in their actual 
occupation, and was thereby severed from the Com- 
mon, and therefore not within the exception. 

That the Land in question originally constituted 
a part of the Common, is a fact stated in the case. 
It must therefore be deemed to be within the ex- 
ception in the charter, unless by means of the grant 
and repurchase, it has ceased to be a part of the 
Common. The exception includes the whole Com- 
mon. To the City Council was given the full and 
entire power of the City Corporation, of selhng all its 
property, except the Common and Faneuil Hall. 
As the City cannot sell anything, in any other way 
or manner, than by the agency of the City Council, 
this exception amounts to an inhibition of a sale of 
the Common and Faneuil Hall, which the City was 
supposed to hold in trust for public uses. 



12 

In deciding what is the effect of the grant of 
1794, it must be recollected that the Town, at that 
time, had no rightful power to grant the Land in 
question, for any purpose or use, inconsistent with 
the public use, to which it had been dedicated. So 
far as that grant was inconsistent with the public 
use, it was void. And it is believed, that no grant, 
inconsistent with the public use, was intended. 

This grant, although purporting to give an estate 
in fee simple, was not absolute and unconditional, 
but on condition that the granted premises should 
be used for one purpose only, to wit, for the erec- 
tion thereon of six Ropewalks, of a prescribed 
height, and that no other buildings whatsoever 
should ever be erected on the same. The intention 
of the grantors, in introducing this condition into 
the grant is obvious. It was to restrict the grantees 
to a use of the Land, which was supposed not to be 
inconsistent, or incompatible with the use, to which 
the public were entitled. The erection of such low 
buildings, not greatly obstructing the prospect, or 
the free circulation of air, it was supposed would 
not materially affect or injure the public use. It 
was not intended to release the Land from the public 
use but to keep it in subserviency to such use. No 
other reason is perceived, why the grant was made 
on this condition. The question is not whether the 
grant with this condition, restraining the grantees to 
this special use, was perfectly consistent with the 
public use, but what was the intention of the parties. 
The Town having the general superintendence of the 
Common, might appropriate any part, for a longer 
or shorter time, to any use or purpose, deemed not 
to be inconsistent with the public use without there- 



13 

by severing such part from the Common, or dis- 
charging it from the public use. The grant of the 
Land in question, by the Town, for the special pur- 
pose designated, instead of operating as a sever- 
ance of it from the Common, tends to show an in- 
tention that it should remain a part of the Common, 
subject to the public use. 

By the repurchase, from the proprietors of the 
Ropewalks, the City acquired no new title, nor any 
other title than what the Town had, at the time of 
the grant. It merely restored the Land to its former 
condition discharged from the special use for which 
it had been granted. The effect of the repurchase 
is no greater or other, than would have been a for- 
feiture by breach of condition by the grantees, and 
an entry therefor by the City. That would have 
restored to the City the former right and title of the 
Town, and nothing more, placing all things in the 
same condition they were in, before the grant to the 
Ropewalk proprietors. The repurchase has the 
same efl'ect. The City can now show no better or 
other title; than what the Town had when the grant 
was made. The only title of the Town then, and of 
the City at the time of its incorporation, and at the 
present time, is that it was part and parcel of the 
Common. 

But should it be held, that the Land in question 
was not a part of the Common, at the time of the in- 
corporation of the City, by reason of the grant to 
the Ropewalks proprietors, I am still inclined to the 
opinion, that it became a part of the Common, by 
the repurchase, within the true meaning of the ex- 
ception in the Charter. 

This exception was introduced to restrain the 



14 

City Council from selling the Common or any part I 

of it. The restraint was intended to extend to 
whatever should, at any time, constitute the Com- 
mon. A piece of land, at the Southeast corner of 
the Common, not originally belonging to it, was 
many years ago purchased and added to it. This 
doubtless now constitutes a part of the Common, 
and comes within the exception in the Charter. 
The case would be the same with any other piece of 
land, hereafter acquired by the City, by purchase or 
otherwise, as and for an addition to the Common. 
I am therefore of opinion, that the City Council 
has no lawful authority, to sell the Lands in question, 
for any use, inconsistent with the public use to which 
they were originally dedicated. 



J. MASON. 



Boston, October 31, 1843. 



OPINION. 



The case states the Lands in question to have been 
part of Boston Common prior to 1794. The City 
Charter authorises the City Council to sell any of 
the Pubhc Lands, except the Common, [and Fan- 
euil Hall.] If the Town had before the power of 
selling the Common, tlie acceptance of the Charter 
would seem to be a relinquishment of that power, 
as no legal mode remains of making any conveyance 
of it. But it is not disputed that the operation of 
the Charter is such as to prevent the sale of " the 
Common," and that if these Lands are now a part 
of the Common, the Council have no power to sell 
them. At least 1 have not heard that point ques- 
tioned. 

The question proposed, therefore, results in this : 
" Have these Lands been effectually severed, so as 
no longer to form a part of the Common, by the 
grant of 1794, and the other circumstances stated in 
the case ; and if so, has the repurchase of them by 
the City, made them again a part of the Common ?" 

It cannot be doubted that the Town of Boston 
owned all the ungranted Land within its limits. The 
deeds from Blackstone and the Indian deed of 1G84-5 
— and the act of the Colonial Legislature of 1G70, 
authorising the Towns by their freemen, or a major- 
ity of them, to grant " the Town's own Lands," 



16 

have in all cases in which it has become necessary 
to trace the titles of Lands in Boston to their origin, 
been admitted as sufficient proof of title in the Town. 

It is equally clear that from a very early period of 
the settlement, the Land known as the Common 
was dedicated to public use. Upon this point there 
can be no dispute ; a clearer case of dedication can- 
not be stated. 

The title by dedication, or rather, the public right 
of use by mere dedication, is recognised by the com- 
mon law, by the Courts of the United States, and 
the Courts of this Commonwealth. (See 2 Peters, 
231, Cincinnatti vs. White, and 19 Pick. 405, Hobbs 
vs. Lowell, and the cases there cited.) According 
to the doctrines of these cases, the grant to the 
public by dedication, when once made, is perpetual 
and irrevocable, and binds the land into whose ever 
hands the legal estate may come. It needs no deed 
for its origin, no grantee to receive it, and no lapse 
of time to support it. The will of the owner, once 
clearly expressed and carried into effect, vests a per- 
petual right in the public — not to the fee of the 
land, for that may still reside in the dedicator, and 
may, perhaps, be transmitted by inheritance or as- 
signed by deed — but the right to use it for the pur- 
poses of the dedication remains in the public. 

Nor does it make any difference in this case that 
the Town of Boston, in its corporate capacity, own- 
ed the fee of the Land. The public, to whom the 
dedication was made, was not the corporate body of 
the Town acting by its majority ; but it was each 
and all of the inhabitants. It was a dedication by 
the majority to the use of the whole, and cannot be 
revoked or impaired by any corporate act or vote of 



17 

the majority, or of the representative body, (the City 
Council) who have, by the City Charter, succeeded 
to the powers of that majority. The Town, in this 
respect, holds the same relation to the public, as any 
other proprietor of land would, who had made such 
a dedication. 

It is obvious that individuals acquire vested rights 
in such a dedication ; they purchase and build in the 
neighborhood upon tlic faith of it; and the u.^e is not 
a corporate, but an individual use, in which every 
citizen has a part and a right. 

If this be so, it is quite unnecessary to inquire into 
the character of the grant to Davis and others in 
1794; because the Town had no right or power, at 
that time, to make any grant of those Lands, incon- 
sistent with the public use to which they had been 
dedicated. The grant w as void so far as its terms 
were inconsistent with that use ; and the mere con- 
veyance of the fee, if the Town had power to make 
it, would not deprive the public of tlieir right. The 
holder of the legal estate, be he who he may, is, after 
such a dedication, a mere trustee for the public, to 
ttie extent, and for the purposes af tlie dedication. 

It is true, that if these Lands had been uncondi^ 
tionally conveyed by the Town to Davis and others, 
and they had l)uilt upon them, or otherwise occupied 
them in a manner inconsistent with the pubhc use, 
long acquiescence by the }xublic in that occupation, 
would be held to be an abandonment of the dedi- 
cation to that extent, and the titles of the grantees 
would become indefeasible. It is said that a consid- 
erable part of what was once the Common, is in fact 
so occupied. No such right, however, could have 
accrued to Davis and others, by lapse of time, be- 



18 

yond the qualified use granted to them ; and what- 
ever rights they might have acquired by time, were 
extinguished when the City repurchased the Land. 

It is not immaterial however to remark that the 
grant to Davis and others was made for pubhc pur- 
poses ; for the maintenance of the Ropewalks ne- 
cessary for the trade of the Town, and to prevent 
their erection in other places, where they would ex- 
pose other buildings to the danger, of fires, such as 
had then recently occurred in Pearl Street ; and that 
the Town received no pecuniary consideration for 
the grant. The grant was also encumbered with 
conditions as to the mode of enjoyment, which clear- 
ly shewed that the Town understood the Land to be 
still appropriated to public uses. I consider there- 
fore the grant to Davis and others to have been, in 
effect, a mere license to erect Ropewalks on the 
Public Lands, for public purposes ; and so long as 
the inhabitants were not disturbed by them in the 
enjoyment of any valuable privilege in the Lands, 
the grants might probably have been sustained upon 
grounds of public policy. 

But be this as it may, I consider it very clear, that 
when the City repurchased these Lands from Gray 
and others, they took them back clothed with the 
entire original trust in favor of the pubhc. I do 
not mean that by this repurchase, the Lands again 
became a part of the Common, (by a sort of jus 
poslUminii,) but that never having ceased to be so^ 
|he City derived no new power of disposition from 
the fact of repurchase. The removal of the Rope- 
walks however, following that repurchase, and the 
reclaiming of the marsh, by the process of filKng up, 
have rendered this part of the Common available for 



19 

all those public uses which were the original objects 
of the dedication ; and might now prevent the City 
from encumbering it, even for public purposes, simi- 
lar to those for which the grant to Davis and others 
was formerly made. 

It will be observed that I do not found my denial 
of the right of the City Council to sell these Lands 
upon the prohibition contained, by implication, in the 
City Charter ; but upon the prior dedication to pub- 
lic uses, which it would require all the powers of the 
Legislature to revoke. I consider the words in the 
Charter to be in effect, as they are in form, mere 
words of exception ; inserted, that it might not be 
supposed that, by any general grant of authority to 
the City Council to sell the Lands of the Town, the 
Legislature intended to empower them to sell those 
dedicated Lands, which the inhabitants of the Town 
could not themselves have sold. 

I do not particularly notice several circumstances 
stated in the case, as tending to show the compara- 
tively recent construction put by the Town author- 
ity, upon the meaning and extent of the word "Com- 
mon," — as I do not think they can affect a dedica- 
tion so long prior. 

It is my opinion, therefore, that notwithstanding 
the grant to Davis and others, and the repurchase 
by the City, and the other facts stated in the case, 
the Lands in question still remain dedicated to the 
public use as Common Land, and cannot lawfully be 
sold by the City Council. 

FRANKLIN DEXTER. 



November 2c?, 1843. 



(L 



i*nf^2 



BOSTON COMMON. 



BOSTON: 

JOHN H. EASTBURN, PRINTER. 

1843. 



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